Jennifer Shack – Just Court ADRhttp://blog.aboutrsi.org
The blog of Resolution Systems InstituteTue, 30 Jan 2018 17:09:37 +0000en-UShourly1Courts and Attorneys Aren’t Doing Enough to Inform Litigants about Their ADR Optionshttp://blog.aboutrsi.org/2017/research/courts-and-attorneys-arent-doing-enough-to-inform-litigants-about-their-adr-options/
http://blog.aboutrsi.org/2017/research/courts-and-attorneys-arent-doing-enough-to-inform-litigants-about-their-adr-options/#respondFri, 03 Nov 2017 15:36:39 +0000http://blog.aboutrsi.org/?p=1776Donna Shestowsky at UC Davis School of Law has been researching the relationship between litigants and court ADR programs for quite a while. In the past, she has reported that litigants prefer mediation and has identified what they want from a dispute resolution process. Now, she’s reporting that few litigants know that the courts in which their cases have been filed offer mediation or arbitration (“When Ignorance Is Not Bliss: An Empirical Study of Litigants’ Awareness of Court-Sponsored Alternative Dispute Resolution Programs,” Harvard Negotiation Law Review, Spring 2017). Shestowsky found that only 24% of litigants surveyed knew that their court offered mediation, and only 27% knew that arbitration was a possibility.

For this particular aspect of Shestowsky’s study, 336 litigants to civil cases with a median amount in controversy of $35,000 were interviewed within three weeks of the closure of their case. The litigants were drawn from three jurisdictions (in California, Oregon and Utah) that had both mediation and arbitration programs for which all the surveyed litigants were eligible. Each of the three jurisdictions had a rule requiring attorneys to discuss ADR options with their clients.

Despite the rules requiring attorneys to discuss mediation and arbitration with their clients, there was no significant difference in responses between represented and unrepresented litigants. Further, only 31% of litigants said that they or their attorney contemplated mediation, while only 24% had contemplated arbitration. The only factor that increased the likelihood of litigants knowing whether their court offered ADR was whether they were repeat players. Repeat players were 2.53 times more likely to know whether the court had ADR programs.

The results are surprising. Not only do the three courts have requirements for discussing ADR, but the Utah and Oregon courts made ADR the default, requiring the parties to take action to avoid mediation and arbitration. Shestowsky concludes that “discussions about procedure did not take place at all, were not flagged as important, or were not conducted in an in-depth or personalized enough way to trigger deep processing,” meaning that they didn’t have enough of a discussion for the information about ADR to stick in the litigants’ memory.

These findings are not just important to those who advocate for ADR, but have a real impact on litigants and the courts. If litigants don’t know the options available to them, or haven’t had them fully explained, they aren’t giving informed consent to participate in the chosen process. On the other side of the coin, it appears that courts are allocating funds to processes that aren’t being used fully because litigants don’t know about them. Additionally, a key finding of the study is that those litigants who knew that the court offered mediation had a higher opinion of the court than those who did not. This suggests that courts can benefit by having litigants be better-educated about their ADR options, even if they don’t elect to use them.

Shestowsky’s research gives us in the ADR field useful information about how little litigant awareness there is about ADR options even when court rules are designed to ensure that litigants can make informed decisions about the process to use. She points to courts whose processes force more litigant acknowledgement of having been educated about ADR as possible models for increasing awareness. The next step should be to test these different processes for educating litigants to determine which is most effective, particularly for those litigants who are less sophisticated.

]]>http://blog.aboutrsi.org/2017/research/courts-and-attorneys-arent-doing-enough-to-inform-litigants-about-their-adr-options/feed/0Which Mediator Techniques Are Most Effective? Report Points to Some with Potentialhttp://blog.aboutrsi.org/2017/uncategorized/which-mediator-techniques-are-most-effective-report-points-to-some-with-potential/
http://blog.aboutrsi.org/2017/uncategorized/which-mediator-techniques-are-most-effective-report-points-to-some-with-potential/#respondTue, 03 Oct 2017 17:23:25 +0000http://blog.aboutrsi.org/?p=1770The ABA Section of Dispute Resolution Task Force on Research of Mediator Techniques has recently released its report on almost 50 studies that looked at the effect of mediator techniques and actions on (1) settlement and related outcomes; (2) disputants’ relationship or ability to work together and their perceptions of the mediator, the mediation process or the outcome; and (3) the attorneys’ perceptions of the mediation. Although the nature of the studies made it hard to draw broad and definitive conclusions about what works, a few threads could be pulled from their findings. Four categories of techniques were found to have the potential to increase the probability of settlement and improve party relationships and perception of the mediation. Each of the four focuses on the parties in some way, whether eliciting their ideas or building rapport.

Because the studies defined mediator techniques and actions differently, the Task Force organized them into the following conceptual categories:

pressing or directive actions or approaches

offering recommendations, suggestions, evaluations, or opinions

eliciting disputants’ suggestions or solutions

addressing disputants’ emotions, relationships, or hostility

working to build rapport and trust, expressing empathy, structuring the agenda, or other “process” styles and actions

using pre-mediation caucuses

using caucuses during mediation

Mediator techniques and actions

When looked at as a whole, the studies were mixed in their findings regarding the effect of categories of techniques on outcomes. Because the findings were mixed, the studies provide no clear guidance about which techniques will have a positive effect on outcomes and which will be detrimental. However, a few techniques were found to have the potential to have a positive effect both on settlement and on disputants’ relationships and perceptions of mediation. These are:

eliciting disputants’ suggestions or solutions

giving more attention to disputants’ emotions, relationships, and sources of conflict

working to build trust and rapport, expressing empathy or praising the disputants, and structuring the agenda

using pre-mediation caucuses focused on establishing trust

Eliciting disputants’ suggestions or solutions

Five studies looked at the effect of mediators working with disputants to suggest possible solutions, helping them to generate new ideas, or asking them to respond to or evaluate ideas or proposals. None found a negative effect on settlement or on participant relationships or perceptions of the mediation, though they were mixed as to whether they had a positive effect or no effect.

Addressing disputant’s emotions, relationships or sources of conflict

Most of the 11 studies that examined the effect of mediators paying more attention to the relationship/emotional aspects of disputes found that this had a positive or neutral effect on settlement, although a couple of studies did find a negative effect. The effect of these actions on disputants’ perceptions and/or relationships was either positive or neutral. In labor-management mediations, trying to reduce emotional tensions decreased the likelihood of settlement, while attempting to reduce expressions of hostility had a positive effect for labor negotiators, but no effect for management negotiators. If paying more attention to the relationship/emotional aspects of the dispute was combined with proposals for how to avoid the appearance of defeat, settlement was more likely.

Working to build trust and rapport, expressing empathy or praise, and structuring the agenda

Of the 11 studies that looked at the effect of the mediator building trust and rapport or expressing empathy or praise on settlement, only two found a negative effect. The other nine found either a positive effect or no effect. Three studies looked at the effect of these actions on the disputants’ relationships and/or perception of the mediation. These either found a positive effect or no effect.

Nine studies looked at what effect structuring the agenda had on settlement. Only one found a negative effect. The others found either a positive or no effect. Studies suggest that agenda setting should be flexible rather than rigid if it is to have a positive effect on disputants’ perceptions of the mediation.

Using pre-mediation caucuses

Three studies looked at the effect of pre-mediation caucuses on settlement and post-mediation relationship conflict. Their findings indicate that these can be effective, but only if used to build trust with the disputants. They were not effective, and could possibly be detrimental, if mediators used them to encourage disputants to accept settlement proposals.

Guidance for mediators

Despite seeing a trend in the studies that pointed to the potential of these categories of techniques and actions, the Task Force did not feel that there was sufficient evidence to state that these were best practices for mediators. However, enough evidence exists to suggest that the above techniques will not be harmful and may well be beneficial to the goals of mediation.

Next steps

The Task Force recommends as next steps that the studies involved in this report be made available in a repository that could be built upon and researched more thoroughly. Other recommendations include developing common terminology, definitions, and measures for mediator actions and mediation outcomes to provide more uniformity and consistency across studies so their findings could more meaningfully be compared. Along with this, research needs to be done to test the reliability and validity of mediator action and mediation outcome measures so that future studies produce more rigorous and meaningful findings. All of this can be possible with the collaboration of researchers, practitioners, trainers and program administrators.

]]>http://blog.aboutrsi.org/2017/uncategorized/which-mediator-techniques-are-most-effective-report-points-to-some-with-potential/feed/0Conscious and Unconscious Thinking in Mediatorshttp://blog.aboutrsi.org/2017/uncategorized/conscious-and-unconscious-thinking-in-mediators/
http://blog.aboutrsi.org/2017/uncategorized/conscious-and-unconscious-thinking-in-mediators/#respondThu, 06 Jul 2017 14:26:08 +0000http://blog.aboutrsi.org/?p=1745The mediation field now has more information in our push to unlock the black box of mediation. A recent study by James Wall and Kenneth Kressl examined the conscious and unconscious thought processes of ten civil case mediators. Their findings do more to confirm what many have long assumed, rather than provide new insights, but they are no less informative because of that. As they discuss in “Mediator Thinking in Civil Cases” (Conflict Resolution Quarterly, Spring 2017), the mediators focused on settlement as well as client satisfaction and obtaining repeat business. Unconsciously, they were biased against emotions being brought into the mediation and saw the dispute as one in which the parties would have to compromise on monetary value.

The study involved 20 observations, two for each of the ten mediators. Nine of the mediators were male; nine were white. When setting up the study, Wall and Kressl made three assumptions:

Mediators have goals and pursue them.

Mediator thinking operates on two levels – unconscious (system 1) and conscious (system 2). System 1 thinking is emotional and based on personal biases, while system 2 thinking is rational.

Mediators engage in mental mapping when adopting goals and pursuing them. Mental mapping involves figuring out what to do and at what point in the mediation in order to achieve their goals.

They used these assumptions to frame their observations. Prior to each mediation, the observer met with the mediator for about 30 minutes and asked, “What are you thinking?” The observer then asked the same question after introductions and after the joint opening session. Once the parties were separated (in each mediation, there was only one joint session), the observer asked the mediator what he was thinking as they walked from one caucus room to the other. After mediation, the observer interviewed the mediator for about 45 minutes.

Conscious Thinking

On the conscious level, Wall and Kressl found that the mediators all had two outcome goals, which they pursued in mediation. These were achieving a settlement and having the clients leave satisfied. Additionally, most of the mediators were interested in obtaining repeat business. The mediators’ operational goals were also universal: lower the clients’ aspirations, keep parties flexible and maintain client control. Interestingly, they all looked to the attorneys to control their clients.

Most of the mediators created mental maps of how they would achieve their goals, although the level of mental mapping varied greatly among them. Mental mapping in general starts with pre-planning – getting relevant information before the mediation starts in order to get an idea of where the case might settle. During mediation, the mediators might take verbal and non-verbal cues into consideration while continuously determining when and how settlement will be achieved, and at what dollar amount. For me, the most surprising finding of the study was that some experienced mediators engage very little in mental mapping. The common factor for the three mediators in the study who used only slight mental mapping was their focus on their own role and actions rather than on those of the parties.

Wall and Kressl found that as part of their mental mapping, the mediators considered how much to press the parties and what the pace of the mediation should be. On both factors, there was considerable variation between mediators. Pressing, defined in the study as “pointing out the weaknesses in the client’s case; noting the strengths of the opponent’s case; and emphasizing the risks, pain, uncertainty, and costs of trial” was used very little by three of the mediators and three used it extensively as a method of control, dominance and pace-quickening.

Unconscious Thinking

Wall and Kressl divided unconscious thinking between prior to mediation and during mediation. Prior to mediation, mediators unconsciously frame the negotiation situation as distributive. That is, they believe that mediation is about getting the parties to make monetary concessions in order to reach agreement. They also believed that mediation should be low conflict and that any mediated settlement was better than trial. The mediators also saw emotions as problematic and to be avoided in mediation.

During mediation, the mediators made quick judgments about the parties and the probability of settlement. Universally, this judgment was negative for insurance adjusters (although the adjuster was only present in five cases). Also noted was that the mediators were “creatures of habit”. All but one conducted the mediation the same no matter the situation. (This was confirmed for five of the mediators, who had been observed for multiple mediations a decade before.) Wall and Kressl noted that the mediators had on average a 70% settlement rate, which might have led the mediators to confirm that their mediation style worked well.

Although the study only included ten mediators, Wall and Kressl saw patterns in their approach to mediation, leading them to put the mediators into three distinct groups:

Reflective Persuaders: these were high mental mappers who were moderate on pressing and extracting offers.

Pressers: these were high on pressing and extracting offers, moderate on what the pace of mediation should be and moderate on mental mapping.

Laissez-faires: these were low on pressing and extracting offers, moderate on repeat business and having pleased clients and moderate on the pace of mediation. They made mental maps but were hands off.

This study suffers from a small and homogeneous sample, so it is not readily generalized to the general population of mediators. Another issue is that the cases were very heterogeneous; differences in case types, dollar amounts and representation may have had an impact on how mediators approached their cases. Nonetheless, the study is significant in that it provides insights into mediators’ unconscious biases. This information can be used to uncover the influence of unconscious thinking on mediator behavior and the path that mediation takes.

]]>http://blog.aboutrsi.org/2017/uncategorized/conscious-and-unconscious-thinking-in-mediators/feed/0Getting the Story Right with Data to Make the Right Decisionshttp://blog.aboutrsi.org/2016/program-evaluation/getting-the-story-right-with-data-to-make-the-right-decisions/
http://blog.aboutrsi.org/2016/program-evaluation/getting-the-story-right-with-data-to-make-the-right-decisions/#commentsThu, 20 Oct 2016 21:07:53 +0000http://blog.aboutrsi.org/?p=1694I’m a data geek. I love poring over data and running analyses to see what story unfolds. On the national level, data can tell us the story of our rise as an industrial power and how that changed how people lived and worked. On a local level, it can tell the story of how the closing of a factory affects the fabric of a community and the institutions that bind it. For foreclosure mediation programs, the data can tell the story of how homeowners are affected by changes to the program. Thus, I was eager to find out how changes to the court rules in the 19th Judicial Circuit of Illinois at the beginning of this year would play out. What story would the data tell?

I’m pleased to say that the story is a happy one. I’ll go back to the beginning. Of the six Illinois Attorney General-funded foreclosure mediation programs, the 19th Circuit’s program, in Lake County, struggled the most to get homeowners to use its services. While other programs had participation rates of 16% and above in the first year, the 19th Circuit program’s was just 7%. The obvious first question was why. There were a number of possible explanations. The program had different, in some ways more stringent, requirements for entry. Latino homeowners were underrepresented, so maybe there was a cultural issue involved. Then there was the fact that housing counseling services, which were a requirement for entering the program, were not centrally located and therefore physically inaccessible to many prospective participants. Maybe it was the fact that the homeowners had to initiate the process and there was no ongoing outreach to inform homeowners newly facing foreclosure that they had an option to mediate. The low participation rate could be caused by any one of these, or a combination.

To fill out this story, we dug deeper into the data. The first question we asked was what was causing the low Latino participation rate? One hypothesis was that the low participation rate was due to a difference in culture. Latinos, perhaps, were less likely to trust a governmental program or believed that a free program was not a good one. There are a number of ways we could have tested that theory. The best would have been to survey Latino homeowners to find out if they were uncomfortable participating in the program. This was not something we had the funds to carry out, however. So, instead, we looked to the 16th Circuit’s program in neighboring Kane County. There, the difference in participation rates between Latinos and whites was insignificant. Because these two communities were demographically similar, we concluded that culture was not the cause of the low participation rate.

We then asked Woodstock Institute to develop some heat maps for us, showing where the highest rates of foreclosure were and where Latinos were most concentrated in the county. The maps showed that both were concentrated in the northwest corner in the county, while the required housing counseling services were being provided in the southern part. In a county with little public transportation, this showed that a more probable explanation for the low Latino participation rate was the inconvenience of the services.

Another issue pointing to inconvenience was that the 19th Circuit program was the only one of the programs that required homeowners to attend an evening group informational session at the courthouse and then call the housing counseling agency to set up an appointment before they were permitted entry into the program. The other programs had simpler steps to entry: complete an online application, call the program for an intake session, or simply show up for their first pre-mediation session.

While there was no direct evidence that the 19th Circuit’s entry requirement was a contributing factor to its low participation rate, we were gathering more information that supported the hypothesis that it was. First, outreach was not a large contributing factor, as other programs with much higher rates of participation were not conducting outreach; the 19th Circuit was, with no appreciable rise in participation. Second, my evaluation of the six programs demonstrated that the level of participation was tied to the mode of entry. So, based on this information, we recommended to the court that it revise the program’s rules to remove the informational session requirement and instead have homeowners contact the program coordinator. This is the model used in the 16th Circuit, which had a 23% participation rate in the first year. The court agreed, and the program’s new rules went into effect in January 2016. Now it was time for the full story to unfold.

The story is that the programmatic changes that focused on ease of entry had a significant impact. In the first six months of 2016, the participation rate for the 19th Circuit program was 16% – a more than 100% increase in participation rate from 2014 and a rate that is more in line with other programs. The broader story is that if homeowners facing foreclosure have to put a good deal of effort into getting help, they’re going to be put off. The easier it is for them, the more likely they are to give the program a try.

This same story has played out in other programs as well. In the 20th Circuit, the program ended a requirement to complete a detailed financial questionnaire in order to participate. Over the next year, participation rose from a low of 11% to 19%. The increased ease in entry is most likely not the only reason for the increase in participation, but it was a contributing factor.

It’s so important to get the story right, both for the individual program and for programs that might come later. Following a storyline that puts cultural differences at the center would have led to a very different set of changes than understanding the story as one in which homeowners were deciding whether to participate based on their assessment of whether the benefits outweigh the costs. In following that story, the court and RSI removed hurdles to entry. As the next chapter unfolds, it appears that removing the hurdles shifted the balance between the benefits and costs for many homeowners and more homeowners are now keeping their homes as a result.

]]>http://blog.aboutrsi.org/2016/program-evaluation/getting-the-story-right-with-data-to-make-the-right-decisions/feed/1Maryland Research Offers Insight into What Works (And What Doesn’t) in the Mediation Roomhttp://blog.aboutrsi.org/2016/program-evaluation/maryland-research-offers-insight-into-what-works-and-what-doesnt-in-the-mediation-room/
http://blog.aboutrsi.org/2016/program-evaluation/maryland-research-offers-insight-into-what-works-and-what-doesnt-in-the-mediation-room/#commentsWed, 29 Jun 2016 18:08:41 +0000http://blog.aboutrsi.org/?p=1670I had the honor of presenting at the Maryland Judiciary’s ADR Research Symposium a couple of weeks ago. The purpose of the symposium was to inform judges and court personnel of the results of a six-year research project examining ADR programs and processes. It reminded me of just how well Maryland has planned and implemented its ADR system. Because it serves as a model, I’d like to provide a little background about this before discussing the research.

Maryland has done a number of things right: it got people from around the state on board with ADR early on and brought in experts to help figure out the best way to approach program development; created a statewide ADR organization (MACRO); provided continuous funding for programs and MACRO; and funded research to both assess the impact of the ADR programs and determine what works best. When the judiciary decided to institute ADR statewide, it funded and worked with MACRO, which provided grants and technical support to courts (and other organizations) to develop new programs. MACRO began the process with a workshop that brought together experts from around the country and Maryland court personnel to discuss best practices for developing and implementing programs.

Since then, the judiciary has continued to fund ADR, which led it to request that the financial outlays be justified through research on the impact of ADR. After obtaining a grant to help fund the research, Maryland developed what is undeniably the most ambitious research project for ADR ever undertaken. They brought in experts to help plan and design the research. And once the research was completed, those involved in the research presented the findings and engaged the judiciary in how best to move forward with the findings.

All of this shows just how much can be accomplished with court ADR when good planning and administration, strong judicial support and proper funding converge.

The Research

Maryland researched five areas of ADR: family, day of trial (small claims), civil, criminal, and collaborative law. As the civil and criminal research has yet to be published, I’m going to be discussing the research into “what works” in family and day of trial mediation, the two areas for which this was studied. Two main themes emerged from this research:

Greater use of caucus leads to poorer outcomes overall.

The greater use of reflecting and eliciting strategies generally led to positive outcomes, while the greater use of directive or offering/telling strategies generally led to negative outcomes.

Caucus

In both family and day of trial programs, researchers observed mediations and coded both mediator and participant statements and actions. This included time spent in caucus as compared to joint session. In both programs, greater percentage of time spent in caucus had a negative impact on the participants. In family cases, when mediators spent relatively more time in caucus, the participants were more likely to say that the mediators respected them and did not take sides. However, they also felt more hopeless about their situation and were less likely to believe they could work with the other parent.

In day of trial cases, the greater the percentage of time spent in caucus led to a number negative outcomes: participants were more likely to say that the mediator controlled the outcome and pressured them into solutions. Greater use of caucus also increased the participants’ sense of powerlessness and lowered their satisfaction with the process and outcome. Longer-term outcomes were also negative. Participants in mediations with relatively greater time spent in caucus were less likely to report self-efficacy (they believe they could make a difference) and to say that the court cares about resolving conflict. They were also more likely to return to court in the next 12 months for an enforcement action.

The research controlled for other possible causes for the outcomes, including participant behaviors. However, it did not explore what happened in caucus as opposed to joint sessions. It therefore could be how caucus was conducted rather than the fact of caucus itself that led to the outcomes.

Mediator Strategies

The effect of particular mediator strategies was examined for family and day of trial cases. To define the strategies, the researchers conducted factor analysis to group particular mediator behaviors according to how often they occur together. They arrived at four strategies:

It appears from the findings that the most beneficial strategies are reflecting and eliciting, while directive and offering/telling strategies are more detrimental than helpful, at least when used relatively more than the other strategies. Reflecting strategies in family mediations, for example, led parents to become more able to work together and to believe the other parent listened and understood. In day of trial mediations, reflecting strategies led to a greater sense of self-efficacy and a belief that the other person took responsibility. Reflecting strategies in both settings, however, lowered the probability of settlement. Eliciting strategies, on the other hand, increased the probability of settlement and had similar effects on the participants as reflecting strategies.

Offering/telling and directing strategies were not related to any positive outcomes. For day of trial mediations, offering/telling was related to a decline in the belief that the outcome was working and to decreased satisfaction with the outcome. Participants were also less likely to report that they changed their approach to conflict. Directing strategies in family mediation led parents to be less likely to say the mediator listened to them and respected them. Further, they made parents more likely to return to court.

Concluding Thoughts

The Maryland research is providing long-sought insight into the black box that is mediation. Most of the previous observational research about what happens in mediation suffers from methodological problems or examines and/or only links behaviors to the probability of settlement. That being said, there still is need for more research. The effect of caucus in civil cases is still unknown. And it would be beneficial to understand what differences exist between mediations in which parties are represented as compared to those in which they are not. On the second day of the symposium, one of the sessions was to ask what else could be done with the research that has already been done. Hopefully, further analysis will provide us with even more insight.